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BEUC on 25-01-2018

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The European Consumer Organisation (BEUC) and its member Altroconsumo, Italy’s largest consumer organisation, strongly support the adoption of the Italian bill (Senate Act No 2484) submitted to TRIS (Notification 2017/498/I). We have recently sent a joint letter to the Italian Senate leadership outlining the reasons for our support and calling for its speedy adoption.

Regarding the submission to TRIS, the products and services concerned by the Italian bill are not clearly qualifiable as Information Society Services. In addition, it is not clear that the measures contained in the bill constitute a technical measure. As both these conditions have to be met cumulatively for the TRIS submission, we do not believe this bill should be evaluated under TRIS. In addition, we do not believe that the consumer protection measures contained in the Italian bill represent a technical barrier to the Single Market. On the contrary, they would allow consumers to more freely use software from across the EU.

Device Neutrality – a missing link in the Digital Single Market

A right to so-called device neutrality is one of the most important missing protective measures for European consumers in the digital economy. While net neutrality (Regulated in EU Regulation 2120/2015) ensures consumers’ internet connections are free of unwarranted discrimination, there is no effective legal measure that achieves a comparable kind of protection within the devices used by consumers.

The Body of European Regulators for Electronic Communications (BEREC) has rightly identified that the devices consumers use to access the internet can have a strong influence on their ability to freely choose what to do online. As consumers live increasingly digital lives, guaranteeing that they can use their smart devices, connected products and connectivity services in a truly neutral and non-discriminatory manner is of key importance.

The proposed Italian Bill 2484 takes an important step in that direction by establishing a so-called device neutrality principle. This principle ensures consumers can install and use the software of their choice on fair and non-discriminatory terms, which means hardware manufacturers and Operating System and App Store providers cannot impede consumers from using certain apps on their devices. For example, it is unacceptable that Google impedes consumers from using privacy and security enhancing app DisconnectMe for purely commercial reasons. This kind of practice should be outlawed.

In addition, the proposed Italian Bill 2484 gives consumers the right to uninstall software and to remove apps and content they are not interested in. This is another measure that is positive for consumers as their smart devices often come with a lot of bundled software that is unnecessary for the core functioning of the device and which might pose a security or privacy threat to consumers. The Italian bill is adequately balanced with safeguards for any mandatory requirements on software providers and to ensure that the device’s security and operativity are not impacted.

BEUC therefore believes that Italian Bill 2484 is a positive development for Italian consumers and has encouraged the Italian legislators to adopt it. In addition, this type of measure should serve as inspiration for similar provisions to be enacted at EU level.

Electronic Frontier Foundation on 25-01-2018

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Electronic Frontier Foundation Response to 2017/498/I

2015/1535 Procedure Regarding a Draft law laying down measures concerning the provision of Internet services for the protection of competition and freedom of access for users

Introduction

EFF is a global non-profit organization working to protect civil liberties in light of new technologies1. We have 44,650 individual members, 3000 of them based within the European Union. Our submission is in our role as a technical experts and consumer advocates in information services and products. Our domain knowledge includes both the effect on consumer rights and the market impact of manufacturer-controlled restrictions on computing device usage.

Among the cases we have worked on in this area, we have established in the United States the right of consumers to install software of their choice on their mobile devices, to engage in research to determine whether their devices are secure and respect their privacy, and to tinker with vehicle software to improve it and effectuate repairs. We have analysed the effects of Sony BMG's insecure "rootkit", software that was surreptitiously installed on personal computers, undermining the security and privacy of customers, ostensibly to prevent CD purchasers from infringing copyright and represented consumers in subsequent litigation2. We have testified before the U.S. Federal Trade Commission on the risks of locked-down computer systems3, and participated in United States, WIPO, and European Union deliberations regarding the regulation of anti-circumvention measures and the harm to competition and user rights that result from such technologies4.

We limit the scope of this short submission to Article 4 of the draft law, which governs the rights of users in terms of choice and selection of software available online and for uninstalling software and removing content from their devices that troubles them or simply is not of interest.

Device Neutrality

We commend the Italian authorities for considering device neutrality as a consumer protection issue, and thereby seeking to alleviate restrictions in the market for software for general purpose computing platforms.

Removing artificial limits on software and services use for these platforms would enhance the ability of owners of computers and smartphones to select third-party software in preference to those preferred by the original manufacturer, assist in preserving the environment by allowing these users to continue to usefully use technology beyond the period of support provided by the manufacturer, and assist users in securing their devices by receiving third-party security updates and/or adaptations. Users could additionally remove or replace manufacturer-provided software that has characteristics they do not need or want, such as privacy-invasive add-ons or programs that seek to lock users into one service (such as a particular telecom provider, or messaging or voice communication system).

Effect of Article 4 on Markets

Our understanding is that EU Member States have broad powers to introduce rules and measures for information goods and services, limited by Articles 34 and 35 of the Treaty on the Functioning of the European Union (TFEU), which prohibits qualitative restrictions or equivalent measures between Member States.

We believe, through our understanding of the underlying technology, that Article 4 would not create such a qualitative restriction.

Technology platforms, as described by the regulation, are built as general purpose computers, and are by default capable of running all software designed for that platform. Manufacturers of such platforms can place restrictions on software that may be installed by the end-user, and also include their own software on the same platform. Platform owners can, and do, place contractual requirements and require fees of third party software creators before permitting them similar access to the market in application software created by these platforms5.

Disabling these restrictions is a matter of removing a limitation, rather than adding a new feature.

Manufacturers have the capability to remove these limitations, and offer them to select customers. For instance, developers who Apple permits to create software for restricted smartphones such as Apple iPhones are already granted the capability of installing their own software onto a limited set of devices for testing purposes6.

Android smartphones whose bootloaders are "locked" so that only manufacturer-approved operating systems may be loaded, have methods, official or not, for unlocking and opening the device for third-party software. A broad market exists for third-party software for these unlocked phones, including software to make backups, improve battery life, and alter privacy settings.7

To comply with the proposed regulation, manufacturers would not be restricted from the import or export of devices between Member States. They would be required, however, to offer such "unlocking" or "sideloading" services by request within Italy, rather than establishing contractual or technical limits on who can advantage of this feature. In other words, they would have to undo an imposed limitation and remove barriers to a market, not add a new technical feature.

The benefit of removing these limitations is comparable to the neutrality requirements of the remainder of the bill: companies in a position of dominance in one sector (manufacturers of hardware) would not be able to place discriminatory limitations on trade or communications in another market (platform software and services).

Conclusion

To the extent that this interacts with European Union's concern in ensuring a better functioning customs union, the bill's results would be positive. The bill would allow the freer movement of goods and services, by creating new markets in Italy for software created within all Member States, and allowing the free movement of such software and services -- which might otherwise be restricted by manufacturer-imposed limits -- between the States.

Contact

We are happy to answer further questions from the Commission on this bill, and other issues surrounding device neutrality.

7 For instance, apps for unlocked or "rooted" Android devices include "Lucky Patcher" which permits fine-grained control over privacy settings, "Greenify", a battery optimizer, and "Titanium Backup", permitting local backup outside of Google or the manufacturer's own backup services. See https://rootedapps.com/

In Italy the first european “Device Neutrality” law has been approved by the Chamber of Deputies but then, after Apple started lobbying against it, the Government is willingful delaying the Senate Vote.

About Device Neutrality In Italy, first country in Europe, a proposed law already approved by the Chamber, gives citizens the right to use the software they want on their own devices and to remove the software they don’t want.

Device Neutrality law ensures the users have a right of non discrimination of the services/apps they use based on platform control by hardware companies, likewise Net neutrality ensures the users have a right of non discrimination of their communications based on network control by telcos.

This is a fundamental civil rights issue as it ensures that the user have the right and possibility to use, for example, the information and communication security tools they prefer on their devices.

The proposed law is not a technical measure but a consumer protection rule which enables citizens to turn to the market protection authority to assess whether a limitation of their right to use the app they want is an aggressive or deceptive commercial practice under currently existing laws.

While all others major tech giants participated to the public hearing, Apple didn't participated neither filed a written position, but went silently lobbying.

The bad Device manufacturers, like Apple, don’t like Device Neutrality.

Specifically Apple, after the bill proposal has been unanimously approved at the Chamber of Deputies, started lobbying hard in order to stop it, deploying a large amount of economic and political resources.

A fact: the Italian Government always declared itself in favour of that bill proposal, like the Chamber’s Commission voted for it and Senators are ready to vote it.

So the Government, first delayed the Senate votes multiple times, then, as a justification for further delaying the vote, invoked Brussels sending the bill for EU TRIS evaluation (Technical Regulation Information System), even though it is a consumer protection measure and not a technical regulation.

The deadline for EU TRIS Contributions is 25/01/2018, obviously the Italian Government in the meantime melt-down.

The fight is hard, the opponents of the bill proposal also started spreading misinformation (Italian media saying “iPhone will be declared Illegal in Italy”), refusing to correct deceptive articles in the press, informant reported large quantities of Macbook, iPhone, iPad being made available to political influencers, industry lobbyist went challenging it with discourses going against the national interests.

The opportunity It’s unbelievable to observe how such big companies can subvert the democratic order by influencing so much the policy makers in order to challenge Device Neutrality.

That’s an opportunity to inspire an EU policy, first applying it in Italy, to provide Device Neutrality rights to citizens and consumers.

We ask the Italian Government to immediately schedule the Senate voting of this Bill Proposal, without further delay, clearly influenced by Apple political interference.

We ask the EU Commission to:

reject TRIS evaluation, not being a technical regulation (our opinioni is that TRIS evaluation is results of lobbying the Italian Government to delay the proposed law)

appreciate the bill proposal, like most technology stakeholders are doing

Future Accountability Actions

We will issues FOIA to EU Commission in order to acquire and publish each and all Contributions that has been sent for the case number 498 (that have as deadline 25/01/2018) but that has not been published.

1. Users have the right to find online, in a format suitable to the desidered technology platform, and to use in fair and non-discriminatory ways software, proprietary or open source, contents and legitimate services of their choice. Users have the right to uninstall software and remove content that is not in their interest from their devices, unless such software is required by mandatory standards or essential for device operation or for the security of the device, of the public communication networks to which it is connected or of the data managed by the device. However, any uninstallation that allows the device to operate in violation of imperative norms is forbidden.

2. The rights referred to in comma 1 may not be limited or restricted to the purchase or use of certain software, content, or services, by platform managers through contractual, technological, economic or user-experience related tools, unless they are not covered by the cases mentioned in comma 1.